Opinion
15-P-1044
01-13-2017
COMMONWEALTH v. Robert ASSAD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of a judge of the District Court revoking his probation. He argues that the judge erred by quashing his summons to compel a witness to testify at the revocation hearing, and by admitting a copy of a digital video disc recording (video) in evidence without proper authentication. We affirm.
In February of 2013, the defendant pleaded guilty to indecent assault and battery on a child under fourteen and failure to register as a sex offender. He was sentenced to two and one-half years of imprisonment, with fourteen months deemed served and the balance suspended, and was placed on probation until February 23, 2018. Several months later, in January of 2014, the defendant's five year old daughter disclosed during a Sexual Abuse Intervention Network (SAIN) interview that the defendant had exposed himself to her and that she had touched his "private spot." As a result, the probation department served the defendant with a notice alleging that he violated his probation by committing a new crime, i.e., another indecent assault and battery on a child under fourteen.
The notice also alleged that the defendant operated a motor vehicle after his license was revoked, but the judge ultimately found the evidence insufficient to support that allegation.
At the revocation hearing, a video recording of the SAIN interview was admitted in evidence and played for the judge over the defendant's objection. The judge then issued a written order finding that the video "was substantially trustworthy and reliable," that the child was a "competent" witness as she "was engaged, responsive, and understood the difference between the truth and a lie," and that her statements were "believable." The judge also found that "the questions were not unduly leading and the child was not coached," observing that her statements "contain[ed] specific factual details" and that she "corrected the interviewer when the interviewer misunderstood what the child said." Thus, based on the interview, the judge ruled that the defendant violated his probation, revoked his probation, and ordered him to serve the balance of his sentences.
1. Allowance of Commonwealth's motion to quash summons . Prior to the hearing, the defendant issued a summons to compel the attendance of the SAIN interviewer, Jessica Costigan. The Commonwealth moved to quash the summons, arguing that Costigan should not be compelled to testify because the defendant failed to prove that her testimony would not be cumulative of other evidence—specifically, the video recording of the interview itself. The judge agreed and allowed the motion, finding that the defendant failed to "show [ ] that there is any basis or ... any reason to believe that the testimony would be other than cumulative of the videotaped interview."
The Commonwealth also argued in its motion that Costigan had a privilege not to testify because she was an employee of the Bristol County district attorney's office and part of the prosecutorial team. That claim is not before us, however, as the Commonwealth abandoned it during oral argument.
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The defendant contends that the judge's ruling denied him the ability to present a meaningful defense, in violation of his due process rights. We disagree. "A decision whether or not to order a witness to appear requires discretion on the part of the trial judge, and thus will be reversed only for an abuse of discretion or an error of law." Commonwealth v. Degrenier , 40 Mass. App. Ct. 212, 215 (1996), citing Commonwealth v. Drew , 397 Mass. 65, 70 (1986). In reviewing the judge's decision, we look to whether the witness was "necessary to an adequate defense," that is, whether the witness's testimony would have been "relevant, material, and not cumulative." Degrenier , 40 Mass. App. Ct. at 215. See Commonwealth v. Perl , 50 Mass. App. Ct. 445, 453 (2000).
Neither of the two grounds proffered by the defendant supports his claim that Costigan's testimony was necessary to his defense. He first asserts that he was entitled to question Costigan about how the child's "disclosure could have been influenced by the circumstances surrounding the interview," pointing in particular to evidence of "a conversation in a waiting room prior to the interview." Costigan's testimony on this point would have been cumulative, however, because the defendant was able to question two other witnesses about the conversation: Fall River Detective Sarah Reis and Department of Children and Families social worker Connie Pereira, both of whom testified that the conversation involved only the SAIN team and took place outside the presence of the child. And although the defendant mentions in passing that Costigan "appeared to engage in conversation" with the child as they walked into the interview, he does not dispute that any such conversation occurred while Costigan was simply escorting the child from the waiting area to the interview room. The judge was certainly entitled to reject the suggestion that Costigan could have, in this brief amount of time, influenced the child to make specific and detailed allegations of sexual abuse against the defendant. See Commonwealth v. Quegan , 35 Mass. App. Ct. 129, 133 (1993) (judge acted within discretion in excluding evidence where defendant did not establish "logical predicate or nexus for the relevance of the excluded evidence ... beyond tenuous, speculative assertion"); Commonwealth v. Rivera , 52 Mass. App. Ct. 321, 323 (2001) ("It is within the judge's discretion to exclude evidence that is too remote in time or too speculative ...").
The defendant also maintains that he was entitled to question Costigan about the susceptibility of children to suggestive interviewing practices. But here, too, Costigan's testimony would have been cumulative because the defendant was able to examine Detective Reis, a trained forensic interviewer, on that topic. Moreover, the judge watched the video recording and determined that the questions asked by Costigan "were not unduly leading and the child was not coached." The defendant does not challenge this finding, and so we reject his contention that the exclusion of Costigan's testimony deprived him of an adequate defense.
2. Authentication of video recording . The Commonwealth offered the video recording through the testimony of Westport police Detective Jeffrey Majewski. According to Detective Majewski, the Fall River police department contacted the Westport police department on January 13, 2014, about a reported sexual assault by the defendant, which had been revealed during a forensic interview; later that day, Detective Majewski received a video of the interview from Detective Reis. Detective Reis confirmed in her testimony that, after attending the interview, she delivered a copy of the video to Detective Majewski at the Westport police department.
In light of this testimony, we reject the defendant's argument that the evidence was insufficient to authenticate the video, even putting aside that strict evidentiary rules do not apply in probation revocation hearings. See Commonwealth v. Durling , 407 Mass. 108, 114 (1990). The requirement of authentication is met if there is enough evidence to permit the judge to determine "that the item is what the proponent claims it is." Mass. G. Evid. § 901(a) (2016). See Commonwealth v. Perez , 89 Mass. App. Ct. 51, 58 (2016). Although the defendant contends that the video could not be authenticated by Detective Majewski because he was not present at the interview, that argument ignores the fact that Detective Reis did attend the interview and personally delivered the video to Detective Majewski. And more fundamentally, the defendant makes no contention that the video is not what Detective Majewski claimed it to be—a recording of a SAIN interview of the defendant's daughter. Because the video recording was therefore properly authenticated, its admission satisfied the "due process touchstone" that governs evidentiary rulings in probation revocation proceedings. See Durling , 407 Mass. at 117–118.
Order revoking probation affirmed .